Letís say that a man has been paying child support to his ex-wife for years. She suddenly has an epiphany that the kid isnít his. In Illinois, the man who accepts responsibility for the kid (by signing the birth certificate, or other means) is the one who pays whether heís the actual father or not. If a DNA test is done that proves the kid is not his he can have the child support stopped. Does anyone know if he can also sue for back payments?

BTW Ė Iím not the dad in this case.

TellMeI'mNotCrazy

01-07-2005, 04:40 PM

IANAL, and of course this varies by location, but I do know that in many places, the fact that a man presents a child as his is all that is needed; even if years down the line, it is discovered that it isn't his child, if he has treated and presented the child as his own (regardless of whether he knew or not), he is responsible for that child.

In looking for a cite, I found this page: (http://www.ilchildsupport.com/paternity_cs.html)

To make it easier for unwed parents to establish paternity at the time of the child's birth, Illinois law makes it possible for both parents to sign a voluntary acknowledgment of paternity form in the hospital. Signing this form eliminates the court process and is vital to having the father's name added to the birth certificate.

Parents who do not sign the voluntary acknowledgment of paternity form at the hospital may sign it later at any local registrar of vital records, county clerk's office, local Department of Human Services office or child support enforcement office. The form can also be completed, witnessed at home and mailed to the Illinois Department of Public Aid, Administrative Coordination Unit, 509 South Sixth Street, Springfield, Illinois 62701.

Persons on public assistance must participate in the establishment of paternity. The Department of Public Aid's Division of Child Support Enforcement uses an administrative process when the alleged father and mother consent to establishing paternity or when the alleged father contests being named the father. The alleged father has the right to a hearing by an administrative law judge or a court hearing if he requests.

Genetic tests are used when an alleged father is in doubt about being the father or whenever paternity is contested.

Paternity can be established by default when an alleged father fails to attend a scheduled interview or to go for a scheduled genetic test and has been properly served with a notice to appear.

Paternity can be established by publication of the alleged father's name in the newspaper.

Paternity can be established in court using the standard judicial process for persons not receiving services from the Division of Child Support Enforcement or for alleged fathers of Temporary Assistance for Needy Families (TANF) clients when they request it.

Bolding mine, of course. I interpret this as saying that without a paternity test, the fact that the father's name was published at the baby's birth as the father is sufficient to say "He's the dad" and that this establishes legal paternity, if not necessarily biological paternity.

Gfactor

01-07-2005, 04:55 PM

Letís say that a man has been paying child support to his ex-wife for years. She suddenly has an epiphany that the kid isnít his. In Illinois, the man who accepts responsibility for the kid (by signing the birth certificate, or other means) is the one who pays whether heís the actual father or not. If a DNA test is done that proves the kid is not his he can have the child support stopped. Does anyone know if he can also sue for back payments?

BTW Ė Iím not the dad in this case.

I'd be surprised if that were so. But I don't have anything more than my gut to go on.

I've been involved in cases in Nevada and Ohio where the law is the opposite. In Nevada, if paternity is litigated in the divorce (and it has to be), the issue is res judicata and cannot be raised again. The result was similar in Ohio, but I think the rationale was a little different. In other words, once paternity is established, it can't be contested.

I don't know if Illinois law is as you say, but even if it is, I doubt a court would let you sue the mom. The new dad, OTOH, might be fair game.

On the third hand, I'm not an Illinois lawyer and I don't specialize in family law. I also don't represent you and am not giving legal advice to you. If you want specific legal advice, contact a specialist in Illinois.

Hope this helps.

Brufordesque

01-07-2005, 05:14 PM

I did my research first. There's no questioning that he is the legal father of the child. And I found numerous cases where a suspicious dad had a DNA test done and was successfully able to have child support stopped. But I haven't been able to find anything further. I agree that it's unlikely that he would be able to sue and get his money back since he was the legal parent, I just wanted to see if anyone knew for sure - maybe a lawyer or someone who's been through it.

black rabbit

01-07-2005, 05:54 PM

I worked for a year as a Child Support Enforcement Tech in Ohio.

Cases like this crossed my desk from time to time, generally at the stage where the AP (absent parent) was filing for a paternity test after a specific period of time.

I heard stories about APs successfully suing for paid support that they didn't owe, but they were all apocryphal. My understanding is that it was handled through regular Civil court, rather than through Domestic Relations or Juvenile. I never saw any actual evidence of such a case.

Confirmed, admitted APs did have the option of filing for repayment of any overpayments after the child was legally emancipated, and we would track those via our normal enforcement methods.

Probably not much help, but it's all I've got. I've conciously repressed most of my memories of that job, since it was the crappiest I've ever had.

Gfactor

01-09-2005, 09:40 PM

I did my research first. There's no questioning that he is the legal father of the child. And I found numerous cases where a suspicious dad had a DNA test done and was successfully able to have child support stopped. But I haven't been able to find anything further. I agree that it's unlikely that he would be able to sue and get his money back since he was the legal parent, I just wanted to see if anyone knew for sure - maybe a lawyer or someone who's been through it.

If he is paying child support to his ex-wife, then the issue of paternity was determined in the divorce or dissolution case. As such, it cannot now be relitigated.

The most common fact pattern giving rise to preclusion issues involves a postdivorce denial of paternity by the husband, raised either as a defense to the wife's suit for child support arrearages or in an action initiated by the husband. Typically, the divorce decree recites that the child in question was born of the marriage and orders the husband to pay monthly child support. Regardless of the manner in which the husband raises his denial, however, the vast majority of states hold that he is precluded by the divorce decree from relitigating the paternity issue.

http://www.divorcesource.com/research/dl/paternity/98sep169.shtml

If paternity was established non-judicially, the result might be different, but that was not the hypothetical that was given.

This rule raises a complicated issue, though: What happens if the real dad shows up and wants to visit his child?

The paternity statutes of some states confer standing upon a man other than a child's presumed father to initiate a paternity suit. See Uniform Parentage Act of 1973 6, 9B U.L.A. 295 (1987). In such states, a man other than the husband may bring suit to establish his paternity of a child born to the wife during the marriage. The courts generally hold that the man's action is not precluded by the divorce decree unless he was joined as a party in the divorce action.

http://www.divorcesource.com/research/dl/paternity/98sep169.shtml

The dad needs to contact an Illinois attorney who is an expert in Illinois family law.